Publication restrictions on judgments and judicial proceedings: problems with the presumptive equivalence of rights

Two recent decisions on applications for publication restrictions on judgments and judicial proceedings have reaffirmed the ‘ultimate balancing test’ between privacy and freedom of expression (Re S per Lord Steyn). Under that test, neither right has ‘as such’ precedence over the other. The reasoning in these decisions, particularly the emphasis on open justice, suggests the courts are treating freedom of expression as presumptively superior to privacy. This note explores the courts’ approach to the ultimate balancing test in publication restriction applications, and distinguishes between cases involving an original substantive claim based on privacy, and cases not involving such a claim. It argues this contextual distinction is critical to understanding when the freedom of expression right, though of equal value in law to the privacy right, should be treated as presumptively superior on the facts of the case, and why the courts should be explicit about this when applying the ultimate balancing test.